Article 22

SPECIAL PROVISION APPLICABLE TO CULTIVATION

Whenever the prevailing conditions in the country or a territory of a Party render the prohibition of the cultivation of the opium poppy, the coca bush or the cannabis plant the most suitable measure, in its opinion, for protecting the public health and welfare and preventing the diversion of drugs into the illicit traffic, the Party concerned shall prohibit cultivation.

Commentary

1. The opium poppy, the coca bush and the cannabis plant are the sources of widely abused substances: opium, coca leaves and cannabis drugs (i.e. cannabis and cannabis resin).' Opium and coca leaves obtained from uncontrolled or inadequately controlled cultivation are, moreover, available to clandestine manufacturers of morphine (which is easily transformed into heroin) and of cocaine, respectively. Except in remote and often rather inaccessible regions, the cultivation of these plants can hardly be hidden from enforcement authorities, while their products can be concealed with relative ease. Cultivators of the poppy in some areas under effective Government administration sell on the illicit market part of their opium crops which they are legally bound to deliver to their national opium agency. 2 A situation may arise in which the Government concerned might come to the conclusion that it cannot possibly suppress a significant diversion into the illegal traffic without prohibiting the cultivation of the plant, a measure which it could effectively enforce.

2. A Party must prohibit the cultivation of the plant concerned if it considers such a step to be "the most suitable measure ... for protecting the public health and welfare and preventing the diversion of drugs into the illicit traffic". Any diversion is likely to cause harm to the health of human beings, but cultivation must be prohibited only if it is also necessary "for protecting the public health and welfare". This additional condition appears to indicate that the authors of article 22 did not consider that any diversion whatever constitutes ipso facto a problem of public health and welfare, but only one which is sufficiently large to present such a problem. A Party is therefore not bound to prohibit cultivation if the drug in question is diverted only in relatively minor quantities.

3. The "public health and welfare" which is to be protected is not only that of the local population, but also that of foreign countries. A Government which considers that the prohibition of cultivation is the most suitable measure for preventing diversion into illicit channels and for protecting the public health and welfare of foreign countries must adopt such a measure, even if its own population does not abuse the drugs concerned in significant quantities.

4. Under the conditions of article 22, not only the cultivation of the poppy for the production of opium, but also that undertaken for the seeds and straw, must be prohibited.

5. Article 28, paragraph 2 provides that the Single Convention does not apply "to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes". It is, however, submitted that article 22 would apply to cultivation authorized only for industrial or horticultural purposes if such cultivation should prove to be a significant source of cannabis or cannabis resin in the illicit traffic, since it would in this case not be undertaken "exclusively" for the authorized purposes.

6. Article 22 would not, on the other hand, cover a situation in which only the leaves of the cannabis plant (not accompanied by the tops) 3 are diverted into the illicit traffic, since the leaves are not "drugs"; 4 it is, however, suggested that it is very improbable that a situation would arise in which only the leaves and not simultaneously cannabis or cannabis resin was obtained from the plants for the illicit market.

7. It is, on the other hand, hypothetically possible, although not very probable except in very extreme cases, that a Party may, pursuant to article 28, paragraph 3, be bound to prohibit the cultivation of the cannabis plant for any purpose if such an action proves to be a measure "necessary to prevent the misuse of, and illicit traffic in, the leaves" of the plant.

8. A Party must prohibit the cultivation of the plant concerned only if such a measure "is in its opinion" required under the conditions of article 22; but this provision, like the rest of the Single Convention, must be applied in good faith. The real opinion of the Government concerned is relevant, and
not what it may falsely pretend to be its opinion. The decision whether the conditions of article 22 for prohibition exist is left to the judgement, but not entirely to the discretion of the Party concerned. 5 A Government which for many years, despite its efforts, has been unable to prevent large-scale diversion of drugs from cultivation can hardly be of the opinion that prohibition of such cultivation would not be "the most suitable measure ... for protecting public health and welfare and preventing the diversion of drugs into the illicit traffic". It is submitted, however, that this applies only to areas which are under the effective control of the Government, and not to those which are not so controlled.

9. Article 22 might also have to be applied to cultivation of the opium poppy, coca bush and cannabis plant, which is temporarily authorized for production for non-medical purposes under article 49 6 if diversion from such cultivation makes it essentially more difficult for the Government gradually to abolish non-medical consumption.

10. There is also a slight difference between the English version, on the one hand, and the French and Spanish versions on the other hand. The English expression "the public health and welfare" is rendered in French by "la sante publique" and in Spanish by "la salud publica". The meaning of the three texts is, however, the same.

11. See also article 24, paragraph 1, subparagraph (b).

1 As regards the leaves of the cannabis plant, see article 28, para. 3.

2 Article 23, para. 2, subpara. (d).

3Article 1, para. 1, subpara. (b) and article 28, para. 3.

4 Article 1, para. 1, subpara. (j); they would become drugs if they were included in Schedule I or 11 by the operation of article 3 ; the illicit trade in the leaves would moreover not be "illicit traffic" as defined in article 1, para. 1, subpara. (1) although article 28, para. 3, uses this phrase in respect of such a trade (as long as the leaves do not become drugs pursuant to article 3).

5 See also above, comments on article 2, para. 5.

6 See below, comments on article 49, paras. 1 and 2.

7 See also above, comments on article 2, para. 5.